This is the privacy case against News of the World for publishing hidden camera photos and video clips of Formula One boss Max Mosley’s B & D session with five women. The paper alleged (wrongly, the judge found) that the sessions involved Nazi role-playing that effectively mocked the suffering of the Jews in the death camps.

Adding piquancy was the fact that Mosley’s dad was a leading British fascist, whose wedding was reportedly attended by Adolph Hitler.

The judgment is legally very interesting, and I’ll get to that tomorrow. But for now… some excerpts from Eady J’s judgment.

From the original news story:

His Jew-hating father – who had Hitler as guest of honour at his marriage – would have been proud of his warped son’s command of German as he struts around looking for bottoms to whack.

From the judge’s reasoning:

Mr Thurlbeck [the paper’s chief reporter] also relied upon the fact that the Claimant was “shaved”. Concentration camp inmates were also shaved. Yet, as Mr Price [for Mosley] pointed out [concentration camp inmates] had their heads shaved. The Claimant, for reasons best known to himself, enjoyed having his bottom shaved – apparently for its own sake rather than because of any supposed Nazi connotation.

From an email by one of the women setting up the session:

Hi ladies. Just to confirm the scenario on Friday at Chelsea with Mike [ie Mosley], starting at 3. If you’re around before then, I’m doing a judicial on him at noon so if you’d like to witness that, be here for 11am…

Doing a judicial! I for one will be doing my best to ensure that this terrific phrase enters the national lexicon. Technically, it apparently refers to a dominatrix wearing judicial robes and where there are prison wardens and beatings. But only the unimaginative will feel themselves confined to this interpretation…

The paper’s attempt to find some public interest justification for the story, when the Nazi angle fell over:

Perhaps the most artificial argument, verging on desperation, was to the effect that [Mosley] was inciting or aiding an offence of assault occasioning actual bodily harm contrary to the Offences against the Person Act 1861 – on himself.

The paper also argued that the women were being assaulted. Justice Eady examined the evidence…

… it is right to acknowledge that some of the young women playing the submissive role also developed a visible coloration of the buttocks. As Woman D accepted, it was painful – “but in a nice way”.

The astonishingly scuzzy behaviour of the paper:

There was discussion as to payment. The husband asked for £25,000 and Mr Thurlbeck agreed on condition that the story was selected to be the “splash” (which indeed in due course it was). Mr Thurlbeck explained that if the story was not the “splash”, there would be less money available. He confirmed that it was within his authority to offer payment of that amount although, of course, later it was reduced. This was explained by Mr Thurlbeck simply on the basis that, after he had obtained the clandestine film from Woman E, “I suggested to [her] that a more appropriate fee for the story was £12,000 and she agreed to this”. Why this was so, despite the fact that the story did in fact become the “splash”, is nowhere explained.

Mr Thurbeck’s emails to two of the other dominatrices, in an attempt to get an interview with them, once it became clear that Mosley was denying the Nazi aspect:

First email:

“I hope you are well. I am Neville Thurlbeck, the chief reporter at the News of the World, the journalist who wrote the story about Max Mosley’s party with you and your girls on Friday.

Please take a breath before you get angry with me!

I did ensure that all your faces were blocked out to spare you any grief.

And soon, the story will become history as life and the news agenda move on very quickly.

There is a substantial sum of money available to you or any of the girls in return for an exclusive interview with us. The interview can be done anonymously and you[r] face can be blacked out too. So it’s pretty straight forward.

Shall we meet/talk?”

Second email:

“I’m just about to send you a series of pictures which will form the basis of our article this week. We want to reveal the identities of the girls involved in the orgy with Max as this is the only follow up we have to our story.

Our preferred story however, would be you speaking to us directly about your dealings with Max. And for that we would be extremely grateful. In return for this, we would grant you full anonimity [sic], pixilate your faces on all photographs and secure a substantial sum of money for you.

This puts you firmly in the driving seat and allows you much greater control as well as preserving your anonimities [sic] (your names won’t be used or your pictures).

Please don’t hesitate to call me … or email me with any thoughts.

Regards and hope to do business.

Neville Thurlbeck, chief reporter, News of the World”

Third email:

“Ok girls, here’s the offer. It’s 8,000 pounds for an interview with one of you, with no name, no id and pixilated face. And we pixilate all the pics I send through to you this morning.

BUT time is running out for us and if you want to come on board, you need to start the ball rolling now. Call me … if you want to.

Best, Neville”

Justice Eady’s account of Mr Thurbeck’s “interview” with the initial source (who carried the hidden cameras), for his follow-up story:

I was also asked to have in mind Mr Thurlbeck’s approach to Woman E after the original publication and how he obtained the “interview” with her which was published in the following edition. He met her in a hotel in Milton Keynes on the day before publication of the follow-up article and presented her with what purported to be a transcript of an interview which he asked her to sign. It would appear to have been a fait accompli. She made no amendments or corrections to the signed copy at all. He then subsequently added further material to it (some of which was attributed to Woman E in the article). When challenged by Mr Price about this, he responded that it was all based on telephone exchanges with her over several days and that the “interview” represented a genuine reflection of what she had told him. There are unhappily no written notes to confirm this claim, which may be thought surprising for a journalist of Mr Thurlbeck’s experience. It is thus not possible to say how true a reflection the published article was of what Woman E had told him.

Were they prostitutes?

As it happens, some of the women were rather reluctant to accept the description “prostitute”… Several of them offer a variety of services on their website (usually spanking or being spanked in various guises) but expressly warn that they do not offer specifically sexual services. They apparently made an exception in “Mike’s” case and threw in a bit of sex, as it were, as an “extra” between friends. Indeed, sometimes they were not paid at all. As they liked the premises and found the atmosphere relaxing and congenial, things developed from there, Indeed, although the Claimant’s sexual activity as revealed in the DVD material did not seem to amount to very much, some of the women stayed on after the party was over and indulged in same sex action purely for their own entertainment.

Did the News of the World really lose this case?

Since releasing the Max Mosley orgy video no notw.co.uk, traffic on the site has increased by 600%.

How to measure damages?

It would seem that the law is concerned to protect such matters as personal dignity, autonomy and integrity. It has to be recognised, of course, that at first sight these notions appear somewhat incongruous when introduced in the present context.

He was more than “a” leading one. Oswald Mosley was their leader, and a very prominent person of his time. He was married to Diana Mitford, one of the famous Mitford sisters. He and Diana were interned in World War II, arguably illegally, soon after Max was born. They kept charming company. Hitler was not the only notorious guest at their 1936 wedding. Goebbels was present too.